What Does a Probate Lawyer Do?

What Does a Probate Lawyer Do?

What Does a Probate Lawyer Do?

Probate law is a specialized area of legal practice focused on managing and distributing a deceased person's estate. When someone passes away, their estate must go through a legal process called probate, which ensures that assets are properly distributed according to the deceased's will or state laws if there is no will. A probate lawyer plays a critical role in guiding families through this often complex and emotional process.

In this article, we will explore what a probate lawyer does, the responsibilities they hold, and when you might need one. Whether you are an executor of an estate or a beneficiary, understanding the role of a probate lawyer can help ease the process during a difficult time.

What Is Probate?

Before diving into what a probate lawyer does, it’s important to understand what probate is. Probate is the legal process that occurs after someone passes away, and it typically involves:

- Validating the deceased person’s will

- Identifying and appraising the deceased's assets

- Paying debts and taxes owed by the estate

- Distributing the remaining assets to beneficiaries

Probate ensures that the deceased's wishes are honoured and that the legal requirements for distributing an estate are followed. 

What Does a Probate Lawyer Do?

A probate lawyer provides legal assistance during the probate process. Their responsibilities can vary depending on whether the decedent (who passed away) left a will or died intestate (without a will). Here’s an overview of the typical duties of a probate lawyer:

1. Advising Executors and Beneficiaries

One of the key roles of a probate attorney is advising the executor of the estate and the beneficiaries. The executor is the person responsible for managing the estate throughout the probate process. A probate lawyer guides the executor on:

- Filing the will with the probate court

- Notifying beneficiaries and creditors of the decedent’s passing

- Gathering and valuing assets

- Paying any debts, taxes, and final expenses

- Distributing the remaining assets to beneficiaries

If there is no will, the lawyer will assist the estate administrator, who takes on a similar role to the executor in intestate situations.

2. Validating the Will

When a person dies with a valid will, the probate lawyer’s first responsibility is to validate that will in court. This step, called proving the will, ensures that the document is legal and accurately reflects the deceased’s wishes. The probate attorney will:

- File the will in probate court

- Notify all beneficiaries and heirs

- Present the will to the court for validation

If anyone contests the validity of the will, the lawyer may represent the estate in litigation to defend the will’s authenticity.

3. Handling Estate Administration

The administration of an estate involves various legal and financial tasks. A probate lawyer assists with the following:

- Inventorying assets: The probate attorney helps locate, identify, and inventory all the deceased’s assets, including real estate, bank accounts, investments, personal belongings, and more.

- Appraising the estate: Some assets may need to be professionally appraised to determine their fair market value.

- Paying debts and taxes: The estate is responsible for paying off any debts owed by the deceased, including medical bills, mortgages, and taxes. The probate lawyer ensures that these obligations are met before any assets are distributed to beneficiaries.

4. Distributing Assets to Beneficiaries

Once the debts and taxes are settled, the probate lawyer assists the executor in distributing the remaining assets to the beneficiaries according to the will or state law. This process must follow legal procedures, especially if minors or disabled beneficiaries are involved, as the lawyer may need to establish trusts or other mechanisms to protect their interests.

5. Handling Disputes and Litigation

Unfortunately, probate is not always a straightforward process. Disputes can arise, especially when beneficiaries feel they have been unfairly treated or question the validity of the will. Some common disputes include:

- Will contests: Beneficiaries may challenge the validity of the will, claiming it was made under duress or that the deceased was not of sound mind when signing it.

- Fiduciary disputes: Sometimes beneficiaries may believe the executor is not fulfilling their duties appropriately, leading to legal action.

- Creditor claims: Creditors may file claims against the estate to recover debts owed by the deceased.

A probate lawyer can represent the estate or beneficiaries in court to resolve these disputes and ensure the legal process continues smoothly.

When Do You Need a Probate Lawyer?

While not every estate requires a probate lawyer, there are certain situations where hiring one is highly recommended:

1. When There Is No Will

If the deceased died without a will (known as intestacy), the estate is subject to state laws governing the distribution of assets. A probate lawyer can help navigate the complex rules of intestacy and ensure that assets are distributed according to the law.

2. If the Will Is Contested

If a family member or beneficiary disputes the validity of the will, it’s important to have a probate lawyer on your side to defend your interests and resolve the dispute.

3. When the Estate Is Large or Complex

Larger estates often involve multiple types of assets, business interests, or real estate holdings that can complicate the probate process. An experienced probate lawyer can assist in managing these complexities and ensuring everything is properly accounted for.

4. When Debts or Taxes Are Owed

If the estate owes significant debts or taxes, a probate lawyer can help ensure these are handled appropriately. They will also help manage the estate’s tax returns and minimize tax liabilities where possible.

5. If You Are an Out-of-State Executor

Serving as an executor can be challenging if you live in a different state from where the probate process is taking place. A local probate lawyer can act as your representative and handle the legal proceedings on your behalf, saving you time and travel expenses.

How Much Does a Probate Lawyer Cost?

The cost of hiring a probate lawyer varies depending on the complexity of the estate and the attorney’s fee structure. Probate lawyers may charge in several ways:

- Hourly Rate: Many probate attorneys charge by the hour, with rates depending on their experience and location.

- Flat Fee: For more straightforward cases, some probate lawyers charge a flat fee to handle the entire process.

- Percentage of the Estate: In some states, probate attorneys are allowed to charge a percentage of the estate’s value, although this fee structure is less common.

It’s important to discuss fees upfront with your attorney to ensure there are no surprises down the line.

Conclusion

A probate lawyer provides valuable legal assistance during one of the most difficult times in life—the loss of a loved one. Whether you are an executor navigating the complex legal process or a beneficiary ensuring your rights are respected, a probate lawyer can guide you through probate smoothly and efficiently.